38 N.J.L. 214 | N.J. | 1876
The opinion of the court was delivered by
This is an application for a mandamus to order the chosen freeholders of the county of Essex to admit the relators into their board.
First — With regard to this alleged title by election. The case before the court shows clearly that these claimants were, at the time specified, duly voted into the office in question. Upon this point no question is made by the respondents, but the objection taken is, that the law requires these officers to bo sworn into office within a limited time, and that the relators did not comply with this mandate. This subject is regulated by the charter of the city of Belleville, enacted in the year 1874. (Pamph. L. 674.) The twenty-second section is the pertinent one, and it is in these words, viz.: “ That no person elected or appointed to any office, in pursuance of this act, or any law or ordinance of the board of councilmen, shall enter upon the discharge of his duties, unless within twenty days after his election or appointment he shall take and subscribe, before the mayor or city clerk, or some other person authorized to administer oaths, an oath or affirmation, faithfully, fairly and impartially to execute the duties of his office, according to the best of his knowledge, skill and ability, and shall file said oath or affirmation with the city clerk, who shall keep all such oaths or affirmations on file in his office, and the oath of the city clerk shall be filed by the mayor; and if any such person shall neglect to take such oath or affirmation for twenty days after his election or appointment, or shall neglect within such twenty days to give such security as may be required of him, he shall be considered as having declined said office, and the same shall be deemed vacant.”
It is admitted that neither of the relators was sworn into office within twenty days after his election, the oath being taken and filed within a few days after such period.
But in the next place it was urged, that this requirement fixing the time in which the official oath is to be taken, is not mandatory, but is merely directory. This question, when a statutory designation of time, with respect to the doing of an act, will be considered material to the legislative purpose, or when not, was fully considered by this court in the case of the Proprietors of the Morris Aqueduct ads. Jones, reported in 7 Vroom 206. The general rule there propounded is, that the prescription of the time in a statute is material, unless an intent is clearly evinced from the nature of the act to be done or the general purport of the law, that it was not so intended. The application of this rule obviously leads to the conclusion that this limit of time in this act is mandatory, and must be submitted to. The whole section is framed for the purpose of giving it such efficacy, and to ask the court to disregard the injunction as to time is, in substance, to ask the court to draw a pen through the entire section. Where the statute has said that one of these officers shall “not enter upon the discharge of his duties, unless within twenty days after his election,’ &e., he shall take and subscribe an oath, it would be a simple usurpation of power for the court to say that he may enter upon the discharge of such duty upon taking an oath after the lapse of the period designated. The time set is a reasonable one; to conform to it is not even inconvenient; I can see no color of reason for refusing obedience to such a direction. JSTo adjudication which was cited, or which I have seen, affords any countenance for the rejection of such a regulation.
The relators forfeited their right to claim their office under
We come, then, to the second ground of the relators’ case; their claim to the office in question by the appointment of the eonamon council of the city of Belleville.
It is shown that the relators first claimed their office by election, and that this title being rejected by the board of •chosen freeholders, they were, subsequently, appointed to the same office by the council. Neither this fact, nor the regularity of the proceedings attending it, are in dispute. The respondents meet this part of the ease with a denial of the right of the council to fill, under the circumstances disclosed, the office.
The ninth section of the city charter declares “ that in case any vacancy shall occur in any of the city or ward offices, by resignation, disqualification, or death of the incumbent of said office, or in any other manner whatsoever (except in the office of mayor, recorder or councilmen, or in the board of education,) the board of councilmen shall fill, by appointment, such office for the unexpired portion of the term.”
By the third section of the charter, the chosen freeholders are expressly declared to be city officers, so that they are, ■undeniably, within the operation of the section just cited. Nor is this gainsayed, but the respondents insist that the office of chosen freeholder, in neither of these cases, was vacant, and consequently that it was not within the competency of the council to fill it. This contention is sought to be justified by a reference to the twelfth section of the law incorporating the townships, which provides for the election of chosen freeholders in the townships, and which declares that such officers “ shall hold their respective offices for one year, and until others shall be chosen and legally qualified in their stead.” The predecessors of the relators were township officers, and it was argued that as these officers, under this section, were authorized to hold over until their successors have been not only chosen but duly qualified; that on the failure of the relators to take their oath within the prescribed
And in coming to this result, I have not overlooked the ingenious comments made by the counsel of the respondents, on the clause in this charter which gives to the council the power to fill vacancies. That clause says that “ the board of councilmen shall fill by appointment, such office for the unexpired portion of the term,” and this expression, it was argued, denoted that the provision applied only to an office that had been entered upon and had partly run out. The expression is not felicitous, and, at first view, seems to give a
The writ, as prayed for, should be issued.